State of Hawaii

Hawaii in
‘substantial compliance’
with Felix

A federal judge finds many gains
but he doubts the state’s
ability to sustain the progress

By Crystal Kua

A federal judge today found the state of Hawaii in "substantial compliance" with the Felix consent decree as of June 30, saying the state has made much progress over the past decade in establishing a quality special education system in the public schools.

But an "entrenched bureaucracy" and other concerns left U.S. District Judge David Ezra with doubts about the state's ability to sustain the progress in the future, he said.

In a hearing this morning, Ezra ordered the federal court supervision to continue until Dec. 31, 2003 or an additional 18 months.

"There is still a lot of work to be done," Ezra said.

Ezra said that he still must find a replacement for court-appointed monitor Ivor Groves, who has recently resigned from his post of monitoring the state's compliance.

The judge's ruling comes as new concerns are raised over the Department of Education's handling of services for autistic children.

The Hawaii Coalition for Health and the Autism Society of Hawaii are protesting contracts that the DOE wants service providers to sign to continue working with autistic children.

They say sections of the contracts amount to a "gag clause" and are not in the best interest of the children.

"We're just speaking out because we believe it's an outrageous provision," said Dr. Arleen Meyers, president of the health coalition. The state agreed to enter into the 1994 consent decree, named for special-needs plaintiff Jennifer Felix, to come into compliance with federal law by improving educational and mental health services.

In court today, Ezra gave several reasons for his concerns on whether the state can maintain the progress it has made:

>> A rising number of cases filed by parents challenging the education and health departments' handling of service for special needs children.

>> The continued battle with the Legislature over funding for Felix related expenses. Ezra said that he wanted to make it clear that his comments are not aimed at the Joint Senate-House Investigative Committee which is examining state spending in Felix cases.

>> Several state level experts -- including those in autism, reading and behavioral -- from the mainland have left their state jobs after a year. The judge blamed "entrenched bureaucracy" resisting change as part of the problem.

Ezra has ordered that the state comes up with a sustainability plan within the next 90 days.

For today's hearing, court-appointed special master Jeff Portnoy recommended to the judge that federal court supervision of Hawaii's public school system not be reduced.

However, Portnoy recommended that the judge find that the state was in substantial compliance but that concerns that surfaced in recent months are enough to keep court oversight until December 2003.

The concerns were brought to the court's attention in a supplemental report by Groves.

While the state and the plaintiffs did not argue their positions in court today, they stuck to their previous positions.

"The state is not in compliance," said plaintiff's attorney Shelby Floyd. "They didn't meet the criteria, they haven't met all the benchmarks, and the ones that they've met, they've gone back on sufficiently to say that they're not in compliance."

Robert Campbell, who oversees Felix compliance issues for the DOE as director of program support and development, said: "We believe that we met what we needed to have done at the end of March. Certainly, that phase of the consent decree has come to an end, and now we believe we should be entering what has typically been called sustainability with less monitoring."

Meanwhile, Autism Society of Hawaii President Naomi Grossman criticized the new contracts as a backdoor approach for the DOE to implement practices that were in a controversial contract that was awarded but then rescinded in June. The DOE took over the servicing of autistic children from the Department of Health in July.

Meyers also pointed specifically to an indemnification clause, which requires service providers to defend the state if their professional opinions lead to litigation.

"So what's going to happen is that they're never going to advise anything that's going to be in the best interest of the patient and against the point of view of the state, because what these things do is, it actually pits the provider against the patient," said Meyers, a pediatrician and lawyer.

State of Hawaii

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